Islamic Fiqh > Financial transactions > Kafala and daman (guarantees) > Condition relating to the guarantor: not being under interdiction (hajr)
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This chapter continues the study of the kafala, the surety, also called daman, the guarantee, according to the four Sunni schools. It sets out the conditions relating to the guarantor: not being under interdiction (hajr), being in good health, being male, giving consent, and being free; then the conditions relating to the guaranteed party: his ability to deliver what is guaranteed and his being known to the guarantor; then the pillars and conditions of the beneficiary of the guarantee: his being known, his consent, and his sound intellect. Detailed issues follow: the guarantee of what is not yet due, the guarantee of the price (daman al-darak), the guarantee of items already under guarantee, the guarantee of entrusted items, the guarantee of the ju'l, the guarantee of the salam payment, the guarantee of the unknown, and the guarantee by the person of the detainee and the absent person. Each position is reported with its classical references in parentheses. The 18 sheets below are a faithful and expanded translation of the original Arabic sheets.
Al-Kasani, a Hanafi (may Allah have mercy on him), said: the kafala of the child and the insane is not concluded, for it is a contract of donation (tabarru'), and a donation is not concluded with one who is not fit to make one (Bada'i' al-Sana'i' 7/363).
The second opinion: the daman of the minor is valid. This is a reported view among the Hanbalis (al-Mughni 6/321; al-Insaf 5/193) and the view of some Malikis (Hashiyat al-Dasuqi 3/510), by analogy with the validity of his acknowledgment, his dispositions, and his sale with the authorization of his guardian (al-Mughni 6/321; al-Kafi 2/228; al-Insaf of al-Mardawi 5/193).
Third condition: that the guarantor not be under interdiction (hajr). Interdiction is of two types: interdiction for prodigality (safah) and interdiction for insolvency (iflas).
First type: the daman of the one interdicted for prodigality. The scholars differed on its validity, in two opinions.
First opinion: his daman is not valid. This is the view of the Hanafis (al-Bahr al-Ra'iq 7/149; Hashiyat Ibn Abidin 7/275; al-Durrar al-Hukkam 7/278; al-Ashbah wa'l-Nazair p. 278), the Malikis (Sharh al-Kabir with Hashiyat al-Dasuqi 3/510; Sharh Miyara 1/193), the Shafi'is (Rawdat al-Talibin 4/241), and the sound view of the Hanbali madhhab (al-Kafi 2/161).
Al-Shirazi (may Allah have mercy on him) said: whoever is interdicted for minority, insanity, or prodigality, his daman is not valid, for it is the granting of wealth by means of a contract, which is not valid from the child, the insane, and the prodigal, like sale (al-Muhadhdhab 1/339; see al-Majmu' with al-Muhadhdhab 13/159).
Al-Nawawi (may Allah have mercy on him) said: the daman of the one interdicted for prodigality is not valid even if the guardian permits it, for it is a donation, and his donation is not valid with the guardian's permission (Rawdat al-Talibin 4/241).
Ibn Qudama (may Allah have mercy on him) said in al-Kafi: the daman comes only from one capable of disposing; as for the one interdicted for minority, insanity, or prodigality, his daman is not valid, for it is a donation by binding oneself to wealth, which is not valid from them, like charity (al-Kafi 2/161). He said in al-Mughni: the daman of the interdicted prodigal is not valid, as mentioned by Abu al-Khattab, and it is the view of al-Shafi'i (al-Mughni 6/321).
Second opinion: the daman is valid and is enforceable after the lifting of the interdiction. This is a view in the Hanbali madhhab (al-Mughni 6/321; al-Insaf 8/368).
The qadi Abu Ya'la (may Allah have mercy on him) said: the daman of the prodigal is valid and enforceable after the lifting of his interdiction, for it is an established principle with us that his acknowledgment is valid and enforceable after the lifting of the interdiction: likewise his daman (al-Mughni 6/321).
Second type: the daman of the one interdicted for insolvency. Likewise two opinions.
First opinion: his daman is valid and enforceable after the lifting of the interdiction. This is the view of the Malikis (see Sharh al-Kabir 3/512) and the sound view of both the Shafi'i madhhab (see Rawdat al-Talibin 4/242; al-Muhadhdhab 1/339; al-Majmu' 13/159; Mughni al-Muhtaj 3/612) and the Hanbali madhhab (al-Mughni 6/322; see al-Insaf 8/368). The reason: it is the granting of wealth in liability (dhimma) by a contract, valid from the insolvent one like buying a price on credit; and because he is capable of disposing, the interdiction being upon his property, not his dhimma: he resembles the pledgor, whose disposition is valid in everything other than the pledged item, as if he borrowed, acknowledged, or bought on credit (al-Mughni 6/322; see al-Insaf 8/368).
Second opinion: his daman is not valid, for he is not fit for donation. This is a narration reported among the Hanbalis (al-Insaf 5/190). Al-Mardawi (may Allah have mercy on him) said: in al-Tabsira there is a narration that the daman of the interdicted insolvent is not valid (al-Insaf 8/368).
What is meant by good health is that a person be healthy, not ill. Illness is of two types: an ordinary, non-threatening illness, and a threatening illness, which is the illness of death. When the illness is not threatening, his daman follows the ruling of the healthy person.
Ibn Qudama (may Allah have mercy on him) said: as for the sick person, if his illness is not threatening, or is not the illness of death, his ruling is that of the healthy (al-Mughni 6/323). And if he acknowledges during his illness that he guaranteed while in good health, it is counted from all his wealth according to Abu Hanifa (Majma' al-Damanat p. 609).
If he is afflicted with the threatening illness of death, his daman follows the ruling of his donation and is counted from the third of his wealth according to the majority of scholars: Hanafis (Bada'i' al-Sana'i' 7/364; Majma' al-Damanat p. 609), Malikis (Hashiyat al-Dasuqi with Sharh al-Kabir 3/511; see al-Mudawwana 5/278), Shafi'is (Rawdat al-Talibin 4/242), and Hanbalis (al-Insaf 5/191), for it is a donation by binding oneself to wealth that does not oblige him, with no compensation taken: it resembles the gift (hiba).
Al-Kasani, the Hanafi (may Allah have mercy on him), said: as for the health of the guarantor's body, it is not a condition for the validity of the kafala: the kafala of the sick person is valid, but from the third, for it is a donation (Bada'i' al-Sana'i' 7/364).
Al-Dardir (may Allah have mercy on him) said in Sharh al-Kabir: the daman is valid and binding from one fit for donation, that is, the legally responsible person upon whom there is no interdiction, even in what he guaranteed. Thus enter the daman of the wife and of the sick person with a threatening illness, within the third, or with a slight excess, on condition that harm is not intended by it, like one dinar, but not what exceeds that: the excess is not binding, though valid, and depends then on the ratification of the husband or the heir.
Al-Dasuqi (may Allah have mercy on him) said, explaining it: if the husband wishes, he returns all of it or ratifies all of it; as for the heirs, if they wish they return what exceeds the third, and if they wish they ratify all of it (Hashiyat al-Dasuqi with Sharh al-Kabir 3/511; see al-Mudawwana 5/278).
Al-Nawawi (may Allah have mercy on him) said: as for the daman of the sick person, the author of al-Hawi said it is counted from the third, for it is a donation: if he has an overwhelming debt, the daman is void; if part of it falls outside the third, it is valid for that part. If he guarantees during his illness, then acknowledges an overwhelming debt, the debt takes precedence and the delay of the acknowledgment has no effect, and Allah knows best (Rawdat al-Talibin 4/242).
Al-Mardawi (may Allah have mercy on him) said in al-Insaf: the daman of the sick person is valid without dispute, but if he dies in his illness, what he guaranteed is counted from his third (al-Insaf 5/191).
It is clear from the foregoing that the sick person whose illness is not threatening, or who is not afflicted with the illness of death, has the ruling of the healthy; and if he is afflicted with the threatening illness of death, his daman follows the ruling of his donation and is not valid beyond the third of his wealth.
Fifth condition: masculinity, upon which the ruling on the woman's daman is built. There is no disagreement among the scholars on the validity of the daman of the adult, sane, rational man not interdicted for prodigality or insolvency, as preceded. The scholars only differed on the ruling on the woman's daman: is it valid from her or not? Two opinions.
First opinion: the daman of the woman is valid without restriction, married or unmarried, with or without the husband's permission. This is the view of the Shafi'is (al-Umm 3/195; Rawdat al-Talibin 4/242; Takmilat al-Majmu' 13/195) and the Hanbalis (al-Mughni with Sharh al-Kabir 6/371).
Al-Shafi'i (may Allah have mercy on him) said: when her wealth is handed over to the woman as to the man, whether she is a virgin, married to a husband, or previously married, like the man in his states, she owns of her wealth what he owns of his, and it is lawful for her in her wealth what is lawful for him in his: such is the ruling of Allah concerning her and him, and the indication of the sunna. When she is married, her mahr is wealth belonging to her, with which she disposes as she wishes, as she disposes with the rest of her wealth (al-Umm 3/195).
Al-Nawawi (may Allah have mercy on him) said: a branch: the daman of the woman is valid, married or not, with no need for the husband's permission, like her other dispositions (Rawdat al-Talibin 4/242).
Ibn Qudama (may Allah have mercy on him) said: the daman of everyone capable of disposing of his wealth is valid, man or woman, for it is a contract aimed at wealth, valid from the woman like sale (al-Mughni with Sharh al-Kabir 6/371).
They supported this with proofs indicating the permission for the woman known to be rational to do the well-known act of goodness and give charity from her wealth, even without her husband's permission, whether a virgin, a wife, or without a husband. Among these proofs is the hadith reported by Bukhari (1/327, 332; hadiths 978, 979, chapter on the imam's exhortation to the women on the day of the festival) and Muslim (2/602; hadiths 884, 885, book of the prayer of the two festivals), from Jabir ibn Abdallah (may Allah be pleased with them both):
The Prophet (peace be upon him) stood on the day of breaking the fast, prayed, beginning with the prayer before the sermon. When he had finished, he came down, went to the women and reminded them, leaning on the hand of Bilal. Bilal had spread out his garment, and he said: 'Come, may my father and mother be your ransom,' as they tossed their rings and signet rings into Bilal's garment.Reported by Bukhari (hadiths 978, 979) and Muslim (hadiths 884, 885)
Al-Nawawi (may Allah have mercy on him) said: in this hadith is the permission for the woman to give charity from her wealth without her husband's permission, and it is not limited to a third of her wealth: this is our madhhab and that of the majority.
Malik (may Allah have mercy on him) said: it is not permitted to exceed a third of her wealth without her husband's consent. Our proof from the hadith is that the Prophet (peace be upon him) did not ask them whether they had sought their husbands' permission in that, nor whether it fell outside the third: had the ruling depended on that, he would have asked (Sharh Muslim 3/443; see Fath al-Bari 2/568).
Maymuna manumitted a slave girl before informing the Prophet (peace be upon him), and he did not fault her for it. Imam Bukhari reported in his Sahih a chapter titled: the woman's gift to other than her husband, and her manumission while she has a husband: it is permissible if she is not prodigal; if she is prodigal, it is not permissible. Allah the Most High said:
"And do not give your wealth to the improvident"
Surah An-Nisa, 5
Then he reported the hadith of Ibn Abbas (may Allah be pleased with them both) that Maymuna bint al-Harith (may Allah be pleased with them both) informed him that she had manumitted a slave girl without asking the permission of the Prophet (peace be upon him). On the day that was her turn, she said:
Do you know, O Messenger of Allah, that I have manumitted my slave girl? He said: "Did you do that?" She said: "Yes." He said: "Had you given her to your maternal uncles, it would have been greater in reward."Reported by Bukhari (2/519, hadith 2452)
The hafiz Ibn Hajar (may Allah have mercy on him) said: his words "the woman's gift to other than her husband, and her manumission while she has a husband" mean: even if she has a husband, it is permissible if she is not prodigal; if she is prodigal, it is not permissible, and Allah the Most High said: "And do not give your wealth to the improvident." On this ruling is the majority; Tawus differed, forbidding it absolutely; according to Malik, she may not give without her husband's permission even if she is rational, except within the third; according to al-Layth, it is not permitted for her at all except in a trivial thing. The proofs of the majority from the Book and the sunna are many. Tawus was supported by the hadith of Amr ibn Shu'ayb, from his father, from his grandfather, raised to the Prophet (peace be upon him): "A woman's gift of her wealth is not valid without the permission of her husband," reported by Abu Dawud and al-Nasa'i. Ibn Battal (may Allah have mercy on him) said: the hadiths of the chapter are sounder, and Malik interpreted them as referring to the insignificant thing, setting its limit at the third and below it (Fath al-Bari 5/258). Then the hafiz said: the reason the hadith of Maymuna falls under this chapter is that she was rational, and that she manumitted before consulting the Prophet (peace be upon him), who did not rectify it but directed her to what is better: had a disposal of her wealth not been effective, he would have annulled it, and Allah knows best (Fath al-Bari 5/259).
Second opinion: the distinction. This is the madhhab of Imam Malik (may Allah have mercy on him).
It is related in the great Mudawwana of Sahnun: I said: what do you say of the kafala of the woman, is it permitted according to Malik or not? He said: Malik said: when she has no husband, it is permitted, on the level of the man. And Malik said of the woman who has no husband: her kafala is permitted for all her wealth. I said: what do you say if the woman, having no husband, stood surety for a kafala, is that permitted of her? He said: yes, according to Malik, for her well-known act of goodness is permitted when no one has authority over her (al-Mudawwana 5/289).
It is related in the Mudawwana: I said: what do you say of the virgin girl who has reached puberty and seen her menses among her family, if she stood surety for a kafala, is that permitted or not? He said: Malik said of her gift and her dower: it is not permitted once she has seen her menses; likewise her kafala in this. I said: why is that not permitted to her? He said: because the disposal of her intimate side is in her father's hand, meaning her marriage falls under paternal authority (al-Mudawwana 5/284). Then he said: the kafala of the virgin is not permitted, for she may not do the well-known act of goodness with her wealth; and the kafala is a well-known act of goodness, and she may likewise not make expenditures from her wealth (al-Mudawwana 5/285).
Sahnun said: I said: is the kafala of the wife permitted? He said: Malik said: her kafala is permitted within what lies between her and her third, unless she has exceeded only by a dinar or something light: it is then known that she did not intend harm by it, and it stands (al-Mudawwana 5/287).
And he said of the kafala of the woman for her husband, with wealth that engulfs hers with the husband's permission: Sahnun said: I said: what do you say of a woman who stood surety for a man on behalf of her husband? He said: Malik said: the woman's gift of wealth to her husband is permitted to her, even if it covers all her wealth, and her kafala stands for all her wealth, even if she gives more than her third, and even if it reaches all her wealth. Malik said: likewise the kafala of the woman for her husband if she is willing. I said: what do you say of why Malik permitted her gift to the husband to cover all the wealth, unlike others, when she is not prodigal? He said: because a man marries a woman only for her wealth: he differs here from others, for he gave her himself only against her intimate side and her wealth (al-Mudawwana 5/287, 288).
Sixth condition: consent (rida). The validity of the daman requires the consent of the guarantor, for it is a contract of donation, which needs consent; there is no disagreement among the scholars on this, for no right binds him from the outset.
Ibn Qudama (may Allah have mercy on him) said: the daman requires a guarantor, a guaranteed party, and a creditor, and it requires the consent of the guarantor: if he is coerced into the daman, it is not valid. The consent of the guaranteed party is not taken into account, with no known disagreement (al-Mughni with Sharh al-Kabir 6/314; see al-Majmu' 13/173).
Seventh condition: freedom. Upon this condition is built the ruling on the slave's daman. The scholars gave details: the majority of scholars, the Hanafis (Bada'i' al-Sana'i' 7/364; Majma' al-Damanat p. 603), the Shafi'is (al-Umm 3/204), and the Hanbalis (al-Mughni with Sharh al-Kabir 6/322), hold that the daman of the slave is not valid without his master's permission, whether he is authorized to trade or not.
Al-Kasani, the Hanafi (may Allah have mercy on him), said: freedom is a condition for this disposition to take effect: the kafala of the slave is not valid, whether he is interdicted or authorized to trade, for it is a donation and the slave does not dispose of it without his master's permission; but it is concluded so as to be enforced after manumission, for the suspension of effect lay in the master's right, which afterwards ceased, unlike the child, whose kafala is not even concluded, for lack of capacity, so that it does not take effect at puberty (Bada'i' al-Sana'i' 7/364).
If the master permits the kafala and the slave has a debt, it is not permitted, for his permission for donation is not valid; if he has no debt, his kafala is valid, and his person is sold in the kafala for the debt, unless the master ransoms him.
He also said in the chapter of the mukatab: the kafala of the mukatab for a third party is not valid, for the mukatab is a slave upon whom a dirham remains, according to the words of the Lawgiver (peace be upon him), whether the master permits it or not, for the master's permission is not valid on his account but is valid on account of the qinn; it is nevertheless concluded until he is pressed for it. If the mukatab or the authorized slave stands surety for the master, it is permitted, for both can make the donation in his favor (Bada'i' al-Sana'i' 7/364).
Al-Shafi'i (may Allah have mercy on him) said: if the slave authorized to trade stands surety, the kafala is void, for the kafala is a consuming of wealth, not an earning of wealth: if we prevent him from consuming of his wealth, little or much, we likewise prevent him from standing surety and incurring a charge upon his wealth, little or much (al-Umm 3/204).
Ibn Qudama (may Allah have mercy on him) said: the daman of the slave is not valid without his master's permission, whether he is authorized to trade or not. This was said by Ibn Abi Layla, Sufyan al-Thawri, and Abu Hanifa. It may be valid and enforceable after manumission: this is one of the two views of the companions of al-Shafi'i. For he is capable of disposing: his disposition is valid in what brings no harm to the master, like the acknowledgment of destruction. The first view rests on its being a contract involving the granting of wealth, not valid without permission, like marriage. Abu Thawr (may Allah have mercy on him) said: if it is on the side of trade, it is permitted; otherwise not: if he guarantees with his master's permission it is valid, for his master, were he to authorize his disposing, it would be valid (al-Mughni with Sharh al-Kabir 6/322).
As for the Malikis, the shaykh al-Dardir (may Allah have mercy on him) said: the daman is valid and binding from one fit for donation, the legally responsible person without interdiction, even in what he guarantees. Thus enter the daman of the wife and the sick person within the third, as will come. Fitness for donation involves a distinction: sometimes the daman is not valid, as what comes from a prodigal, an insane person, or a child; sometimes it is valid without being binding, as what comes from a wife or a sick person beyond the third, and from the slave without his master's permission. He illustrated those fit for donation by the mukatab and the slave authorized to trade whose masters authorized them to guarantee: had they not authorized them, it would not have been binding on them, though valid, as his words indicate: the one of servile status is pursued by the daman, meaning by the wealth he guaranteed, even if manumitted after guaranteeing first with his master's permission: he cannot release it at the outset, unlike the second case, where he may release it before manumission, so that he is not pursued after it, and he is not sold for it before manumission, even if his master permits him (Sharh al-Kabir 3/510, 511).
Second condition: the ability of the guaranteed party to deliver what is guaranteed. Imam Abu Hanifa (may Allah have mercy on him) required that the guaranteed party be able to deliver what is guaranteed, by himself or through an agent; most of the scholars did not require it, even the two companions of Abu Hanifa, Abu Yusuf and Muhammad ibn al-Hasan, may Allah have mercy on them both (Bada'i' al-Sana'i' 7/364).
On this basis they differed on the daman for the deceased who left nothing. As for the deceased who left sufficient means, they agreed on the validity of the daman for him (see al-Ifsah of Ibn Hubayra 2/205; Rawdat al-Talibin 4/240).
As for the deceased who left nothing, they differed in two opinions.
First opinion: the daman for the deceased is valid. This is the view of most of the scholars: Malikis, Shafi'is, and Hanbalis, and of the two companions among the Hanafis (see Bada'i' al-Sana'i' 7/364; Hashiyat Radd al-Muhtar 5/416; Sharh al-Kabir with Hashiyat al-Dasuqi 3/512; al-Umm 3/265; al-Ifsah 2/205; Rawdat al-Talibin 4/240; al-Mughni 6/315, 316).
Al-Shafi'i (may Allah have mercy on him) said: when a man guarantees the debt of the deceased while knowing him and knowing to whom it is owed, the daman is valid and binding, whether the deceased left something or not (al-Umm 3/265).
Al-Dardir (may Allah have mercy on him) said: the daman for the insolvent deceased, that is, the destitute, is valid, in the sense of paying on his behalf, for it is a well-known act of goodness from the guarantor; the insolvent is mentioned specifically because he is the point of disagreement among the imams, Abu Hanifa having forbidden it. As for the living or deceased person of means, the validity of the daman for him is not disputed (Sharh al-Kabir with Hashiyat al-Dasuqi 3/512). Al-Dasuqi said in his gloss: when one takes on the debt of the destitute deceased knowing his destitution and pays on his behalf, one does not reclaim for wealth that appears afterwards, for this undertaking is a well-known act of goodness and a donation; but if one knew, thought, or doubted that he had wealth, and wealth then appears, one reclaims what one paid, unlike what one pays for the strictly insolvent: one never reclaims, as Abd al-Baqi al-Zurqani said, quoted by our shaykh al-Adawi. Muhammad al-Banani said: this deserves consideration; the apparent meaning of the Mudawwana is that one reclaims if one knew he had wealth, with no difference between the two senses of the word insolvent.
The majority supported this with the following:
A funeral was brought to the Prophet (peace be upon him) for him to pray over it. He said: "Does he owe a debt?" They said: "No," and he prayed over him. Then another funeral was brought, and he said: "Does he owe a debt?" They said: "Yes." He said: "Pray over your companion." Abu Qatada said: "His debt is on me, O Messenger of Allah," so he prayed over him.Reported by Bukhari (hadith 2295)
This hadith is explicit in meaning on the daman for the deceased who left nothing. The hafiz Ibn Hajar (may Allah have mercy on him) said: it was used to establish the permissibility of guaranteeing the debt of the deceased who left no means: this is the view of the majority, against Abu Hanifa, and al-Tahawi strongly championed the view of the majority (Fath al-Bari 4/582; see Sharh Mushkil al-Athar of al-Tahawi 10/333, 335).
Al-Baghawi (may Allah have mercy on him) said in Sharh al-Sunna, after relating this hadith: it contains the proof of the permissibility of the daman for the deceased, whether he left means or not: this is the view of most of the people of knowledge, and al-Hasan, Ibn Abi Layla, and al-Shafi'i followed it. Abu Hanifa said: the daman for a deceased who left no means is not valid. It is however agreed that if one guarantees the debt of a living destitute who then dies, the daman stands: since the death of the destitute does not contradict the continuance of the daman, it does not contradict its establishment in the first place (Sharh al-Sunna 4/359; see Tuhfat al-Ahwadhi 4/153; Mirqat al-Mafatih 6/110).
The Messenger of Allah (peace be upon him), when a funeral was brought to him, asked nothing of the man's deeds except his debt: if it was said that he had a debt, he refrained from praying over him; if it was said that he had none, he prayed over him. A funeral was brought, and when he stood he asked his companions: "Does your companion owe a debt?" They said: "He owes two dirhams." The Messenger of Allah (peace be upon him) turned away from him and said: "Pray over your companion." Ali ibn Abi Talib said: "O Prophet of Allah, they are on me, I discharge his estate." The Messenger of Allah (peace be upon him) then stepped forward and prayed over him, then said: "O Ali, may Allah reward you with good and release your pledge as you released the pledge of your brother. There is no deceased who dies leaving a debt but that he is held by his debt: whoever releases the pledge of a deceased, Allah releases his pledge on the day of resurrection." Someone said: "Is this for Ali alone or for the Muslims in general?" He said: "Rather for the Muslims in general."Reported by al-Daraqutni and al-Bayhaqi; a very weak hadith (see details below)
This hadith is very weak: reported by al-Daraqutni in his Sunan (3/46) and al-Bayhaqi in al-Kubra (6/73, hadith 11181), by way of Isma'il ibn Iyyash, from Ata' ibn Ajlan, from Abu Ishaq al-Hamdani, from Asim ibn Damra, from Ali. Bukhari said of Ata' ibn Ajlan that he is munkar al-hadith; Ibn Ma'in declared him a liar; Abu Hatim declared him abandoned. It is also narrated from Abu Sa'id al-Khudri by Abd ibn Hamid in his Musnad (893), al-Daraqutni in his Sunan (3/87), and al-Bayhaqi in al-Kubra (6/73, hadith 11180), by ways passing through Ubayd Allah al-Wasafi, from Atiyya al-Awfi, from Abu Sa'id: al-Bayhaqi said the hadith revolves around Ubayd Allah al-Wasafi, who is very weak; Ibn Adi said in al-Kamil (5/522) that it is very weak; Ibn Hibban said it is very weak; Atiyya al-Awfi is also weak. Ibn al-Mulaqqin weakened it in al-Badr al-Munir (6/709).
To this is added: if a man volunteered to pay off a debt, the creditor would have the right to demand it of him: likewise if he guarantees it. And if someone guarantees a debt while the debtor lives and the debtor then dies, the guarantor's dhimma is not discharged; if the dhimma of the guaranteed party is discharged, that of the guarantor is discharged with it (al-Mughni 6/316). Death does not contradict the persistence of the debt, for it is a juristic form of wealth whose persistence does not require capacity: it is an established debt whose daman is valid, as if the deceased had left means for his debt (Bada'i' al-Sana'i' 7/364; al-Mughni 6/316).
Second opinion: the daman of the deceased's debt is not valid unless he leaves means; if he leaves part of the means, his daman is valid to the extent of what he left. This is the view of Abu Hanifa (Sharh Fath al-Qadir 7/206), for the debt is an expression of the act, and the deceased is incapable of acting: it would be a guarantee of an extinguished debt, which is not valid, as if one guaranteed the debt of someone who has no debt (Bada'i' al-Sana'i' 7/365).
Ibn Qudama (may Allah have mercy on him) said in al-Kafi: the daman of the debt of the insolvent deceased and others is valid (al-Kafi 2/161). He also said in al-Mughni: among the proofs is the validity of the daman for everyone against whom a right is due, living or dead, of means or insolvent, by the generality of the wording; this is the view of most of the people of knowledge. Abu Hanifa said: the daman of the deceased's debt is not valid unless he leaves means; if he leaves part of them, his daman is valid to the extent of what he left, for it is an extinguished debt whose daman is not valid, as if it were extinguished by discharge; and because his dhimma has been ruined with a ruin that is not rebuilt: no debt remains in it. The daman is the joining of one dhimma to another in the obligation. Then he said: we have as proof the hadiths of Abu Qatada and Ali, who guaranteed the debt of a deceased who left no means, and the Prophet (peace be upon him) urged them to guarantee it, in the hadith of Abu Qatada, by his words: "Will not someone among you rise to guarantee it?" This is explicit on the issue. And because it is an established debt, its daman is valid as if the deceased had left means; the proof of its establishment is that if a man volunteered to pay it off, the creditor would have the right to demand it (al-Mughni 6/315, 316).
Al-Shawkani (may Allah have mercy on him) said in Nayl al-Awtar, after citing the hadiths of the chapter: the hadiths of the chapter indicate that the daman for the deceased is valid, and the guarantor is bound by what he guaranteed, whether the deceased is rich or poor: this is the direction of the majority (Nayl al-Awtar 3/331).
Third condition: knowledge of the guaranteed party: must the guarantor know him or not? The scholars differed on this in three opinions.
First opinion: the guarantor's knowledge of the guaranteed party is not required. This is the soundest view among the Shafi'is (Rawdat al-Talibin 4/240; Asna al-Matalib 10/113; Mughni al-Muhtaj 2/200) and the Hanbalis (al-Mughni 6/314; al-Insaf 8/376). They relied on the following: the hadiths of Abu Qatada and Ali cited above: they guaranteed for people they did not know (Ibn Qudama, al-Mughni 6/314). And because it is a donation by binding oneself to wealth: the knowledge of the one to whom the donation is made is not taken into account, like the vow (nadr) (al-Mughni 6/314). And by analogy with the consent of the guaranteed party, which is not required by consensus: likewise his knowledge (Mughni al-Muhtaj 2/200).
Second opinion: the guarantor's knowledge of the guaranteed party is required. This is the view of al-Kasani among the Hanafis (Bada'i' al-Sana'i' 7/365), and a view among the Shafi'is (Mughni al-Muhtaj 3/164) and the Hanbalis (al-Mughni 6/314). The qadi Abu Ya'la (may Allah have mercy on him) said: that he know and ascertain whether the guaranteed party is fit to receive the well-known act of goodness, and that he know the beneficiary in order to pay him (al-Mughni 6/314).
Third opinion, the madhhab of the Hanafis: knowledge of the guaranteed party is required in the suspended (ta'liq) and the added (idafa) daman, not in the immediate daman (tanjiz) (Bada'i' al-Sana'i' 7/365). The suspended daman: "If so-and-so steals something of yours, I am your surety," called suspended by condition. The added daman: "What is established against people is on me." If someone says to another: "I guarantee you what people sell on credit," the kafala is not valid, because the people guaranteed are unknown (see al-Majmu' 13/175; al-Rawd al-Murbi' 6/433; Hashiyat Radd al-Muhtar 5/308; al-Mudawwana 3/133).
The Hanafis rested this requirement on the suspended and added daman only, not the immediate, on the ground that analogy (qiyas) fundamentally refuses to permit suspending or adding the daman, for it is the granting of a right belonging to the claimant, permitted only by equitable consideration (istihsan) for the sake of dealings; and dealings occur only when the guaranteed party is known: if he is unknown, the analogy has no basis. As for the immediate daman: the kafala with respect to the claimant resembles divorce and manumission, valid without his acceptance or command: his ignorance does not prevent its validity, just as the ignorance of the manumitted one does not prevent manumission (Hashiyat Radd al-Muhtar 5/308, 309; Fath al-Qadir 7/184).
Third chapter: the pillars of the beneficiary of the guarantee and his conditions. The beneficiary is the one whose right is established against the guaranteed party; he is also called the claimant and the creditor. His conditions are three.
First condition: knowledge of the beneficiary: the guarantor must know the beneficiary. The people of knowledge differed on this in two opinions.
First opinion: the guarantor's knowledge of the beneficiary is not required. This is the view of the Malikis (see Ahkam al-Qur'an of Ibn al-Arabi 1097; Sharh al-Kabir 3/517), a view among the Shafi'is (see Rawdat al-Talibin 4/241; Mughni al-Muhtaj 2/200), and the madhhab of the Hanbalis (see al-Mughni 6/314; al-Rawd al-Murbi' 6/333; Sharh Muntaha al-Iradat 2/248). If he says: "I am surety for the debt of Zayd to the people" without knowing who holds the debt, the daman is valid (al-Rawd al-Murbi' 6/433).
Ibn al-Arabi, the Maliki (may Allah have mercy on him), said: concerning the ignorance of the beneficiary: our scholars say it is permitted, and it is likewise permitted together with ignorance of the thing guaranteed, or both (Ahkam al-Qur'an 3/1097). He relied on the word of Allah the Most High:
"And for whoever brings it, the load of a camel: upon me be its responsibility"
Surah Yusuf, 72
Ibn al-Arabi said: the verse is an explicit text on the permissibility of ignorance of the beneficiary, and the ignorance of the guaranteed party is lighter still (Ahkam al-Qur'an 1098). Added to this are the hadiths of the daman of Abu Qatada and Ali (may Allah be pleased with them both): they guaranteed for people they did not know, as is apparent from the two hadiths, and the Prophet (peace be upon him) did not ask them whether they knew him or not (al-Mughni 6/314). Had the right depended on that, the Prophet (peace be upon him) would have clarified it. The obligation is the delivery of the right: beyond that, knowledge is not needed (see Takmilat al-Majmu' 13/165). And the daman is a donation by binding oneself to wealth: the one to whom it is made is not taken into account, like the vow (al-Mughni 6/314).
Second opinion: the guarantor's knowledge of the beneficiary is required: if he says "I am surety for whatever harm this broker causes to people," it is not valid. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/365; Hashiyat Ibn Abidin 5/308; Fath al-Qadir 7/183), the soundest view among the Shafi'is (Rawdat al-Talibin 4/240; Mughni al-Muhtaj 3/614; Sharh al-Minhaj 3/379; al-Fatawa al-Fiqhiyya al-Kubra of Ibn Hajar al-Haytami 3/73), and a view among the Hanbalis (al-Mughni 6/314).
Al-Kasani, the Hanafi (may Allah have mercy on him), said: the beneficiary must be known, to the point that if he guarantees for "one of the people," it is not permitted, for if the beneficiary is unknown, the purpose for which the kafala was instituted is not achieved, namely the securing (Bada'i' al-Sana'i' 7/365).
Al-Nawawi (may Allah have mercy on him) said: knowledge of the beneficiary is required on the soundest view (Rawdat al-Talibin 4/240; Asna al-Matalib 2/236; Mughni al-Muhtaj 3/164; al-Majmu' 13/166). That is, the guarantor's knowledge of the beneficiary; this knowledge means knowing him in person, not by name and lineage; it has been said: knowing his dealings, for there is no benefit in seeing one whose dealings one does not know. The qadi Abu Ya'la (may Allah have mercy on him) said: the guarantor's knowledge of the beneficiary is taken into account, so that he pays him (al-Mughni 6/314).